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This article has been authored by Priyanka Bajpai, a fourth year law student at Institute of Law, Nirma University, Ahmedabad.


There has always been a fascinating relationship between mental illness and the concept of crime in a sense that criminal activity often denotes the deviant behaviour of some from the rest of the society. Many sociologists define the word ‘crime’ to be an act which is deviant from the set societal norms and is thereby, to be prohibited by the law, and the behaviour of mentally ill or psychopathic persons are often deviant from the set patterns and interests of the community at large. According to experts, mental illness refers to the mental disorders which result in alterations in moods, living habits, behavioural changes resulting in deviations from set patterns of behaviours and often resulting in criminality.

Penology, which forms a crucial branch of Criminal Science, concerns itself with the study of punishment and treatment of offenders; and the criminal justice administration is believed to be incomplete without administering punishment to the offenders. When it comes to mentally ill offenders, our criminal justice system renders certain leniency to them in terms of criminal proceedings and punishment, since the mentally ill or insane offenders are considered to be incapable of understanding the circumstances and are said to not possess the requisite mens rea (guilty mind) to commit the offence. However, this decrease in culpability does not mean the offender can be left scot free without any punishment.[i]

However, with the shift towards reformative theory of punishment where the focus is on the reformation of the perpetrators, the pertinent question with regards to the mentally ill offenders is what mechanism of punishment and degree of penalization would be appropriate for them. In light of this issue, this article discusses the theories of punishment with respect to penalization of mentally ill offenders, the mechanisms of punishment adopted in other countries and the reforms required in the criminal justice system with respect to such offenders.

Crime Causation with Respect to Mentally Ill or Psychotic Offenders

The reason of criminality of different types of offenders has been explained by the various Schools of Criminology, with each School criticizing the previous School and propounding a different theory for crime causation. The scholar Beccaria, belonging to the Classical School which dates back to the mid-eighteenth century, propounded that all individuals possess free-will coupled with reasoning and one resorts to crime when one sees more pleasure in commission of crime than pain[ii] hence, all persons must be punished equally irrespective of the category the offender falls into i.e., first-time offender, habitual offender, mentally ill or juvenile offender all must be given equal punishment based on their culpable act without pondering over the presence of mens rea of the offender.

The Neo-Classical School heavily criticized the theory of Classical School on the ground that it fails to distinguish between different categories of offenders while meting out punishment. The Neo-Classical School suggested that there must be a distinction drawn among different categories of individuals and weightage must be given to factors like insanity, mental illness, juvenility, aggravating circumstances while deciding the punishment.[iii] Though Neo-Classical School emphasized on the need to distinguish mentally-ill or insane criminals from others, it failed to suggest the ways for reformation of offenders and rather proposed to eliminate mentally ill offenders from the society. After this, Sir Cesare Lombroso, known as the father of the Positivist School or Italian School, proposed that individuals with certain anthropological features like specific jawline, headspace etc. are likely to resort to criminal behaviour and they can be termed as ‘born criminalsdue to presence of certain atavistic anomalies since birth.[iv] Lombroso further suggests the category of ‘insane criminals’,who retort to criminality due to unsoundness of mind or insanity.

These Schools suggests that mentally ill persons are more likely to commit crime due to their mental incapability to comprehend any circumstance and even research suggests that mentally ill individuals are more prone to violence and resort to disturbing behaviour often resulting in commission of crime because of lack of proper treatment for a relatively long duration.

Treatment or Punishment- What is Appropriate according to Different Legal Systems?

The punishment of offenders or sentencing procedure forms the basis of criminal justice administration, however, with respect to the mentally ill offenders the complexity revolves around the question of appropriateness of penal sanction or requirement of offering treatment to these insane offenders who commit crime due to mental abnormalities. Since punishment secures the interest of the society and creates deterrence among prospective criminals, it seems difficult to digest the fact that mentally ill offenders who affect the interest of the society at large should be hospitalized or provided treatment and subsequently discharged. The State administers punishment to the offenders with the aim to create deterrence among prospective criminals and to prevent the offender from further committing the offence. However, in the case of insane criminals due regard must be given to their mental incapability to form mens rea which is the basic element of a crime.

Keeping various factors such as the mental element, the socio-economic circumstances, environmental factors etc. under which a person can commit crime, the reformative theory suggests that the aim should not be to kill the criminals but to cure them and hence, offenders must be rehabilitated through medical treatment, training or educational program to transform into a law-abiding citizen. With the continuous shift towards reformative theory of punishment which emphasises on the rehabilitation of offenders, concerns revolving around the treatment of mentally ill offenders is on the rise. While some countries offer hospitalization of mentally ill offenders after the prison term, there are some other countries like Israel, U.S which offer treatment or hospitalization during their term of punishment in prison, this approach is commonly called treatment/punishment ruling and serves both objectives of reformation of offender and prevention of crime. When it comes to India, first the mentally ill offenders are medically examined during the initiation of trial proceedings, and if there is no one to take care of such psychotic offender then Court transfers such offender to prison since there are no other provisions for mandatory hospitalization of such offenders.

What about Mentally Ill Prisoners?

Apart from mentally ill offenders who commit crime, the rate at which prisoners are getting afflicted with mental disorders is increasing worldwide due to the poor jail maintenance, lack of proper medical services, lack of proper rehabilitation mechanisms and violation of other human rights of prisoners. Many studies suggest that there has been a stark increase in the mental health issues among prison inmates with the number increasing to three times the number of persons admitted to asylums.[v] The reasons behind the shift of prison cell into the dingy place for people with mental disorders are manifold namely lack of proper environment, use of different forms of violence, substance-abuse, solitary confinements, filthy spaces, curtailment of social network etc.

It becomes pertinent that proper steps are taken to mitigate the growing mental disorders among prison inmates as it will enhance the probability of reformation of prisoners, remove discrimination which persons with mental disorders face in the society and would help the inmates in better initiation into community life after their prison term. This situation calls for an analysis of current prison systems and necessary reform as giving punishment by confining the offenders in prisons is not the ultimate goal of the criminal justice administration if such offenders cannot be reinstated into the law-abiding society.


The society has always remained intolerant towards deviants and mentally ill persons and the such persons are often not offered the same opportunities as others. Due to their mental incapability, they can easily retort to violence and criminality and are inflicted with punishment. Our criminal justice system gives due regard to the conditions of the mentally ill offenders and certain exceptions like the defence of insanity are incorporated to treat these kinds of offenders with some leniency. However, with the focus shifting towards the reformation of offenders and the mismanagement in the current prison system, it becomes crucial that mentally ill offenders are given necessary treatment by offering them well-equipped mental health care facility. The goal of criminal justice is not just to confine the offender within the four walls of the prison in order to prevent crime but also to make the offender capable of being reinstated into society by transforming into a law-abiding citizen.

[i]Mirko Bagaric, A Rational (Unapologetically Pragmatic) Approach to Dealing with the Irrational – The Sentencing of Offenders with Mental Disorders 29 Harvard Human Rights Journal 3 (2016). [ii]Classifying Crime: Major Schools of Criminology, Criminal Justice: South Eastern University: Online Learning (July 21, 2017). [iii]Id. [iv]James R. Jones & Veronica L. Ford, Mental Illness and Crime: A Misconceived Relationship 7(2) Journal of Psychology and Behavioral Science 56-65, 57 (Dec. 2019). [v]Fred E. Markowitz, Mental illness, crime, and violence: Risk, context, and social control 16 Aggression and Violent Behaviour 36-44, 37 (2011).

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